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Publishing Information that Harms Another's Reputation

When you publish online, whether it's on a blog, in a podcast, in a
video you upload to YouTube, or simply in a comment on another's
website, you might say or do something that harms the reputation of
another person, group, or organization. Fortunately, not everything you
publish that harms the reputation of others will open you up to legal
liability. For example, you won't generally face legal liability if you
simply state your opinion, even if your opinion is harsh, critical, or wildly off-base.

Nevertheless, if you find yourself about to publish something
that could harm another's reputation, you should spend some time
familiarizing yourself with the various laws that protect reputation.
The sections that follow are not intended to make you an expert on
libel law, but merely to help you identify potential "red flags" so
that when you publish something that might negatively impact the
reputation of another person, group, or organization, you will know to
be extra careful and will take the necessary steps to minimize your
potential legal liability.

First, ask yourself whether what you intend to publish would
UPSET YOU if someone else were to publish the information about you.
This simple test won't tell you for sure whether you will be liable if
the information you publish turns out to be false, but it will get you
focused on the statements that should be of greatest concern. Moreover,
putting aside the legal implications of what you publish, statements
that upset others are more likely to draw their ire and result in a
lawsuit, even when they don't actually have a viable legal claim.
Depending on what you say and how you say it, you will likely need to
be concerned with two different, but related, legal doctrines that aim
to protect against reputational harm:

Defamation: Defamation is the general term for a legal claim involving injury to one's reputation caused by false statements of fact
and includes both libel and slander. The crux of a defamation claim is
falsity. Truthful statements that harm another's reputation will not
create liability for defamation (although they may open you up to other
forms of liability if the information you publish is of a personal or highly private nature).

False Light: False light is similar to defamation. Claims for false light generally involve untrue implications
rather than directly false statements. For instance, an article about
sex offenders illustrated with a photograph you pulled from Flickr
of an individual who is not, in fact, a sex offender could give rise to
a false light claim, even if the article and photo caption never make
the explicit false statement (i.e., identifying the person in the photo
as a sex offender) that would support a defamation claim.

Keep in mind that the republication of someone else's words can
itself be defamatory. In other words, you won't be immune simply
because you are quoting another person making the defamatory statement,
even if you properly attribute the statement to it's source. For
example, if you quote a witness to a traffic accident who says the
driver was drunk when he ran the red light and it turns out the driver
wasn't drunk and he had a green light, you can't hide behind the fact
that you were merely republishing the witness' statement (which would
likely be defamatory).

Second, if you think you've been improperly sued in retaliation
for your speaking out on a public issue or controversy, you may be able
to get the case dismissed or file a counter claim under your state's
law protecting against Strategic Lawsuits Against Public Participation (SLAPP). If you are sued in a state that has an anti-SLAPP law, you may be able to end the lawsuit quickly and recover your costs and attorneys' fees.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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